Join Date: Aug 2008
Location: way out in the wilderness a lone coyote calls
Here is a very interesting piece about the history of our constitution.
The 1922 Constitution was of Irish manufacture; in January 1922, the “Provisional Government” appointed a committee to draft it.
On 27th February 1922, Churchill informed the House of Commons that the Provisional Government was aware of requirements which would lead to British acceptance and that the Irish general election would be postponed to “the early part of June instead of in April.” “The Constitution will be submitted to the Irish people by and with the authority of the Provisional Government, and not by and with the authority of the Dail Eireann. The Provisional Government recognise that they will have to take steps to satisfy themselves that the Constitution so framed is of a character that the British Government can accept as fulfilling the Treaty.”
On 15th June 1922, Churchill, announced to the Commons:-
“But there are two events of very considerable importance which will take place to-morrow. The first is the Irish Elections and the second is the publication of the Irish Constitution. So far as the Irish Elections are concerned, I am sure that the less we say about them here at this stage, the better.
“So far as the Irish Constitution is concerned, unexpected progress has been made. The Constitution will be published in to-morrow morning's newspapers on both sides of the Channel, and it is my duty to state on behalf of His Majesty's Government that in their opinion the Constitution is in conformity with the Treaty”.
Members including Captain Craig [Unionist, Antrim] were moved to criticise Churchill’s equivocation; Churchill blamed the Provisional Government, then confronted with what was arguably the most difficult year in recent Irish history.
Eventually, “[t]he Constitution appeared in the newspapers on the morning of Polling Day. Those voters who lived at any distance from Dublin did not see it before going to the Poll. Tens of thousands voted with the promise of a Republican Constitution still in their minds.”
PEOPLE POWER - ACKNOWLEDGED
The 1922 Constitution had important provisions, which echoed the Swiss Federal Constitution. Their basis appeared in Article 50:-
“Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, ..., after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, ...., have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two-thirds of the votes recorded shall have been cast in favour of such amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.”
Conceivably the most radical were Articles 47 and 48. Similar to Articles 138 to 141 of the modern Swiss Federal Constitution, they encapsulated the fundamentals of Direct Democracy. Essentially, 100,000 Swiss citizens can propose a complete or partial revision of the Federal Constitution. Article 140 requires that these amendments must be approved in referendum by a majority of the People and of the Cantons. The Free State being a unitary state had no equivalent of cantons, which in Switzerland could be used to alleviate what Aquinas called “tyranny of the majority” [i.e. democracy].
PEOPLE POWER AND A LITTLE CUTE HOORISM
On 5th October 1922, in the committee stage of the Constitution Bill, Kevin O'Higgins (Minister for Justice) introduced the proposed “Article 47—Power of Initiation by the People.
“The Parliament/Oireachtas may provide for the initiation by the people of proposals for laws or constitutional amendments. Should the Parliament/Oireachtas fail to make such provision within two years, it shall, on the petition of not less than one hundred thousand voters on the register, of whom not more than twenty thousand shall be voters in any one constituency, either make such provisions or submit the question to the people for decision in accordance with the ordinary regulations governing the Referendum. Any legislation passed by the Parliament/ Oireachtas providing for such initiation by the people shall provide
(1) that such proposals may be initiated on a petition of fifty thousand voters on the register;
(2) that if the Parliament/Oireachtas rejects a proposal so initiated it shall be submitted to the people for decision in accordance with the ordinary regulations governing the Referendum; and
(3) that if the Parliament/Oireachtas enacts a proposal so initiated, such enactment shall be subject to the provisions respecting ordinary legislation or amendments of the Constitution as the case may be.”
The minister continued:-
“In moving the adoption of this Article, I may say it will still further associate the people with the forging of the laws of the country, and it puts the power in the hands of the people of even initiating legislation. If a large section of the people feel that a certain law is desirable; and if Parliament fails to introduce the desired legislation, power is given here to the people to initiate legislation themselves. It is the direct complement of the Referendum, and pretty much what can be claimed for the Referendum can be claimed for the Initiative—that it keeps contact between the people and their laws, and keeps responsibility and consciousness in the minds of the people that they are the real and ultimate rulers of the country. The text of the Article as it stands is permissive; it is not mandatory. It is permissive of Parliament to institute the initiative, but it is mandatory if Parliament, having failed to introduce it, is so requested by a petition within two years. I think it is better not to speak of the amendments that are on the paper until they are moved.”
Deputy Thomas Johnson, the Labour leader, enthusiastically welcomed this but proposed that vacillation be removed and the amended article be confirmed. Ernest Blythe, the second minister to speak, prevaricated: “There are difficulties about making anything mandatory within a limited period. We cannot tell what the Parliamentary history of the next two years may be.”
Deputy O'Shannon teased Johnson for “scaring the farmer Deputies into the belief that [he] wants to Bolshevise the country right off by this proposal.”
“Motion made and question put: — “That Article 47 stand part of the Bill.” It did.
On 29th November 1922, Dáil Éireann was informed that Britain had accepted the Free State Constitution. Essentially, the British had little to lose, as the enabling act loyally embraced the Treaty.
... AND A LITTLE LIGHT LEGERDEMAIN
In the General Election, June 1927, the newly-formed Fianna Fáil [FF] became the second largest party in the Dáil with 44 T.Ds. It refused to swear allegiance to His Britannic Majesty, until on August 11th, de Valera discounted the oath of allegiance, from a justification of civil war to “merely an empty political formula”.
Five days later Thomas Johnson TD, proposed a vote of no confidence in the “executive committee”, which was tied [71-71] and the Ceann Comhairle’s casting vote was needed to save the government. On 25th the Dáil was dissolved. The resulting General Election gave FF 57 T.Ds. against Cummann na nGael’s 62 [and deprived Thomas Johnson of his place.]
On 3rd May 1928, De Valera failed with a petition of 96,000 signatures to force a referendum for the removal of the Parliamentary oath of allegiance to the English monarch. [The Constitution, Article 48, required only 75,000.] An Ceann Comhairle intervened with what seems like sarcasm: “As objection is taken, it seems that Deputy de Valera must give notice of motion asking that leave be granted to present the petition. I take it that there will be no difficulty, after consultation with the Deputy, in finding a proper form for that motion.” In the ensuing protracted prevarication, de Valera accused the government of denying FF: “the only way open to us in the Constitution, in order to get in here and allow those we represent to be represented properly, that the question for the first time was raised of taking out Articles 47 and 48.”
The “only way” was closed permanently on 12th July by the Constitutional (Amendment No. 10). In less than 100 words, the Government effectively buried true democracy, which it lacked the courage to grant in the first instance.
In the month from 6th June 1928, the Dáil met on 15 days and conducted 22 debates on constitutional amendments. It processed Constitutional Amendment Bills: Nos. 6, 7, 8, 9, 10 and 13. On July 4th, senator complained that he had lost count of the “sweeping alterations in the Constitution for which [the Government] themselves were responsible, in a Constitution for the protection of which they have been imprisoning people all over the country within the last few years, shooting them and doing various other things which I did not approve of. ... it shows that those who are prepared to do these sort of things ought not to be in such a hurry to alter the Constitution in this wholesale way, and especially without consulting the people. Worse than that is the degrading of the Constitution by imposing measures on it in a way which I find it difficult to get a suitable word to describe. It destroys the public morals and in fact the whole Constitution. Ministers have made statements to the public, which they must know are not true. They have stated that this Bill, if it is not passed, will produce a state of war or disturbance in this country. It is hard to understand how any people with any intelligence could possibly make such statements.”
PEOPLE POWER – YOU THINK YOU SEE IT; NOW YOU DON’T!
In the very short Constitution (Amendment No. 16) ACT, 1929, the Oireachtas demonstrated a fundamental weakness in the Constitution: -
“Article 50 of the Constitution shall be and is hereby amended by the deletion therefrom of the words "eight years" in each of the places in which those words now occur therein and the insertion in each case of the words "sixteen years" in lieu of the words so deleted, and the said Article 50 shall be construed and have effect accordingly”. [Why stop at "sixteen years"?]
A CHANGE OF GOVERNMENT: AN APPARENT CHANGE OF STRATEGY
In February 1932, FF sought a mandate from voters to abolish payment of Land Annuities to Britain; the following month de Valera formed the first FF government, which released political prisoners and suspended military trials for political offences, instituted by Constitution (Amendment No. 17) Act, October 1931.
On 19th May 1932, the Dáil passed the Constitution (Removal of Oath) Bill. Unlike previous constitutional amendments, it disregarded the 1921 Treaty [Article 4]. Later, the [British] Privy Council held in Moore v. Attorney-General of the Irish Free State, 1935, that by section 2, Statute of Westminster, 1931, “a Dominion Parliament was given full legislative powers,.... The Statute can be amended by a Dominion Parliament so far as it is part of its own statute law.”
In the Dáil on 16 December 1937, the veteran Fine Gael T.D. [1923-1965], lawyer and future government minister, Patrick McGilligan, denied the power of the people to “enact” the new Bunreacht.
“... legislative power was given to a body called the Oireachtas. That body could have, if it so wished, given back power to the people to enact legislation but it failed to do so.”... “How does it come then that the people enact anything?”
The Dáil voted: the question and its fundamental refutation of people power were simply disregarded.
The British Government and preeminent jurists refused to acknowledge Direct Democracy, except for Switzerland. Our elected rulers probably recognised its benefits for the people and scuppered them. The amending statutes were on the whole extremely short, often of one functional section. The disposal of Articles 47 and 48 and neutralising Article 50 provided stark evidence of its serial manipulation into a Westminster-style “elective dictatorship.”  While cynically and systematically denied the electorate the necessary power, the Free State government duplicitously proclaimed the people as “the real and ultimate rulers of the country”.
One of the issue's for me is the origan of the state of our democracy.
Why, well we have things like social partnerships (unelected) doing deals with Taoisigh.
The Taoiseach is elected by the members of their own parties.In effect, the system we have is almost presidential and bears no relationship to our constitution.
That's a bit different to this